Adapting to change: A brief history of South Africa’s legal development

The South African legal system is a colourful amalgamation of several varied legal systems. Its Roman-Dutch law basis, and its inherent ability to look to other systems for solutions, has made it particularly suitable for South Africa’s diverse society. As noted by Lord Tomlin in a 1934 judgment when he was a judge in the House of Lords (then the highest court of appeal for domestic matters): “Roman-Dutch law… is a virile living system of law, ever seeking, as every such system must, to adapt itself consistently with its inherent basic principles to deal effectively with the increasing complexities of modern organised society.”

History

Roman-Dutch law was retained and confirmed as the common law of South Africa after the country’s British annexation in the 1800s. Among other changes then, English became the language of the courts and English legal procedures and the English law of evidence were introduced in both criminal and civil matters. As result, a unique relationship between English common law and Roman-Dutch law is evident in South Africa. The common law has since been augmented by statutory law, with many cases before courts now concerned with statutes’ interpretation and application. Because of the unique heritage of South African law, and the constitutional imperative to have regard to comparative law, foreign law is also frequently consulted as persuasive but non-binding authority.

One of the first steps in the construction of a post-apartheid state, the introduction of the Interim Constitution on April 27, 1994 had a revolutionary effect on South Africa’s legal system. Importantly, the interim and the 1996 Constitution (drafted and adopted by an elected Constitutional Assembly) replaced the doctrine of parliamentary sovereignty with the doctrine of constitutional supremacy meaning the Constitution replaced Parliament as the highest source of governance. The Bill of Rights was simultaneously introduced to safeguard human rights, ending centuries of human rights abuses. The Constitution separates power between the legislature, the executive branch and the judiciary, with checks and balances to ensure accountability, responsiveness and openness. Judicial authority is vested in the courts, which are established by, or pursuant to, the Constitution. The Constitutional Court is the highest court in the land in respect of constitutional matters. The Supreme Court of Appeal is the highest court in all non-constitutional matters, and hears appeals from the High Courts.

Court Is In Session

The Constitutional Court exercises both exclusive and concurrent jurisdiction in constitutional matters. In respect of direct challenges to the constitutionality of all forms of legislation, concurrent jurisdiction is exercised between the Constitutional Court, the Supreme Court of Appeal and the High Courts. The court of first instance in such cases is, however, ordinarily the High Court. Decisions of the Constitutional Court are binding upon all persons and all organs of state. Constitutional Court judges are appointed by the president, in consultation with the cabinet, and on the recommendation of the Judicial Service Commission, and independent body.

Judgments of the Supreme Court of Appeal are binding on all courts of a lower order. Judgments of the divisions of the High Court are binding upon the lower courts within their respective areas of jurisdiction. The Magistrates Court, established by the Magistrates Courts Act, No. 32 of 1944, is one of these lower courts. It has both civil and criminal jurisdiction, and there are limits on the matters and monetary amounts it can entertain. Several other lower courts exist as well: the small claims courts, community courts and equality courts.

There are also specialist courts, including the land claims court and water tribunal.

In Summary

South Africa is an adolescent constitutional democracy with a defined legal system and a healthy approach to the rule of law. Its solid Roman-Dutch law basis, and its inherent ability to be flexible and learn from other jurisdictions, has allowed it to adapt to the legal challenges typically facing an immensely diverse, culturally rich and rapidly globalising country.

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The Report: South Africa 2013

Legal Framework chapter from The Report: South Africa 2013

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